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The Sound of One President Caving

For a while, the administration encouraged people to think that President Obama would take a stand against the unnecessary and very dangerous provisions that Congress jammed into the annual National Defense Authorization Act. He threatened to veto the whole bill in order to block new rules that would mandate the military custody of most terrorist suspects, and officially sanction their indefinite detention, without due process.

Yesterday, the president backed down, completely. The White House announced that he was satisfied with a slightly watered-down version of the bill that was approved by conferees from both houses and would sign it. (I’ve written about why the bill is a really, really bad idea here and here.)

I’m not all that surprised; this president has a nasty habit of giving in to political pressure. But I had let myself think that this issue was so important that Mr. Obama might take a stand. And I’m baffled now as to why he ever pretended to be taking one in the first place. It just reinforces the impression of a White House team that mumbles and fumbles.

The White House says there have been sufficient changes in the military detention provisions for the president to sign the bill. Not that I can see.

The final version still seems to require the military custody of suspected Qaeda operatives—but now the executive can make exceptions to that requirement. (The previous versions only allowed a waiver when the secretary of defense, the attorney general and the head of national intelligence all agreed.) It’s not clear to me how effective this waiver would be in practice, and it seems positively dangerous to leave this decision up to whoever might sit in the White House in future years. Remember, we got into this mess because a president thought he had the power to ignore the constitution and international law.

The bill no longer explicitly bans the use of civilian courts to prosecute Qaeda suspects, but it does authorize indefinite detention—not just for suspected members of Al Qaeda but also its allies. And who can say what that means? So among other terribly depressing consequences, the bill makes it virtually impossible to ever close Guantanamo Bay. (For more detailed information, see the Lawfare blog, which has been covering the NDAA closely, or read Charlie Savage in the Times.)

Most broadly, the bill continues the work President George W. Bush started. Mr. Bush and his supporters exploited the nation’s fear and insecurity after the Sept. 11 attacks (and Democrats’ insecurity about national security) to ram through several unnecessary bills, including the Patriot Act and a dangerous expansion of the government’s ability to spy on Americans’ international communications without judicial supervision. Now, Mr. Obama and the Democrats in Congress have proven that they’re equally willing to curtail civil liberties, and, in the process, further damage America’s global reputation as a defender of human rights.

I think it’s barely possible that Mr. Obama would sign a waiver of military detention when warranted. But it’s impossible to imagine a Republican successor doing that. And that’s the big point. This is supposed to be a nation of laws, not a nation of men we just really hope will make good decisions. I wish Mr. Obama saw that more clearly.

1:34 p.m. | UpdateRead more about the National Defense Authorization Act.